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It’s not yet clear how court ruling will change tree cutting on state land

This tree, measuring less than 3 inches, was cut by the state Department of Environmental Conservation for a snowmobile trail and was one of 12,000 photographed by Protect the Adirondacks for a lawsuit. The DEC had operated under in internal rule that trees under 3 inches in diameter were not timber and could be cut. (Provided photo — Peter Bauer, Protect the Adirondacks)

Since New York’s top court ruled last week that the state violated its own constitution by cutting trees for Class II snowmobile trails on the Forest Preserve, state agencies have given scant response on what this might mean for the future of trail cutting in the Adirondacks.

The leader of a local trail organization says this verdict did away with a system that’s been in place for a long time and now everyone will have to learn a new system.

The Department of Environmental Conservation did not comment on how the court’s redefinition of what counts as timber will impact its trail cutting and maintenance efforts. The DEC did, however, comment that it appreciated the court’s approach, but not its verdict.

BETA waits on DEC

Josh Wilson is executive director of the Barkeater Trails Alliance (BETA), which operates the Jackrabbit Trail for cross-country skiing and several mountain bike trails. He said he was not surprised by the verdict and believes there was too much tree cutting in the case of Class II snowmobile trails. But he wonders how the new definition of timber will affect his trail cutting plans.

The Court of Appeals scrapped the DEC’s longtime internal rule that trees under 3 inches in diameter are not counted as “timber” under Article 14, instead opening the definition of timber to include any tree, essentially larger than 1 inch in diameter at breast height.

For the past few years BETA has held up trail cutting projects, waiting for the result of this court case. However, a verdict does not mean its path forward is clear yet.

“It’s a very big decision that doesn’t change anything immediately for us,” Wilson said.

He said they’ll have to wait until the DEC updates its tree-cutting policy.

Wilson thinks the DEC’s policy was already pretty strict before this case and believes the 3-inch rule provided a “workable system for trail construction.” He anticipates the change means there will be longer delays in getting approval for tree-cutting projects in the future.

The court ruled that tree cutting can be done for trail maintenance and building in the Forest Preserve as long as it doesn’t reach a “substantial” or “material” degree of timber destruction. These terms are not yet clearly defined. That complicates things, Wilson said.

He hopes the DEC involves trail groups in rewriting its policies to fit these new guidelines.

“The reality is while the DEC is building these trails sometimes … often it’s nonprofit groups like ours that are doing the work,” Wilson said.

DEC

In a statement, DEC said it is “disappointed” by the verdict, but also said it appreciates the court’s application of case law in reading Article 14 of the state Constitution as a unified statement. Article 14 says, “The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”

In the past, other courts have read the two sentences of Article 14 as separate statements: the first guaranteeing the Forest Preserve is kept as “wild forest lands,” the second banning the destruction of timber on those lands. This bifurcated reading means the courts have at times found an action constitutional under one portion of Article 14 and unconstitutional under the other.

Though the verdict was split 4-2, all justices on the Court of Appeals rejected that bifurcated reading and agreed with the unified reading of the clause in the precedent-setting 1930 case Association for Protection of Adirondacks v. MacDonald. In that case, an environmental group successfully sued to stop a bobsled run for the 1932 Winter Olympics from being built in the state-owned Sentinel Range near Lake Placid. That run was eventually built on private land.

“The two sentences of this provision are interrelated,” Justice Leslie Stein wrote in her dissenting opinion.

The majority and dissenting opinions, however, read Article 14 as one piece for two different reasons: the majority to say the Class II cutting was unconstitutional, the dissent to say it was constitutional.

Stein quoted the MacDonald ruling, which says that the Forest Preserve and Adirondack Park “are for the reasonable use and benefit of the public.”

“(This) is consistent with DEC’s ongoing efforts to provide access to the forest preserve and protect public safety, including the construction and maintenance of facilities associated with hiking and camping,” the DEC said in a statement.

The MacDonald ruling makes accommodations for public use, but with limits, saying tree cutting cannot be “material” or “substantial.” The majority in both MacDonald and this new case found the cutting reached those levels.

While the DEC didn’t like the court’s decision, it supported its methods. The state likes that the court determined if a project violates Article 14 by looking at its overall impact on the Forest Preserve.

Peter Bauer, the executive director of Protect the Adirondacks, the environmental group that sued the DEC and Adirondack Park Agency in this case, said neither has come out with a “thoughtful and considered response” to what the ruling means for their tree cutting policies. He said Protect has asked to speak with both agencies but has been denied.

The DEC said it works with “many stakeholders” in updating guidance.

Amendments

The Court of Appeals said if New Yorkers want these snowmobile trails, they should get a constitutional amendment to Article 14 to allow the cutting.

A constitutional amendment must pass two consecutive sessions in both legislative chambers and be voted on by the majority of New Yorkers to be adopted.

After the state Olympic Regional Development Authority planned to cut trees on the Forest Preserve while upgrading its Mount Van Hoevenburg Olympic Sports Complex in 2019, green groups threatened to sue. They held back after ORDA agreed that it would seek a constitutional amendment, and agreed to reduce its cutting on state land from 3,500 trees to 1,500.

Adirondack Council Director of Communications John Sheehan said ORDA did propose this amendment in 2020, but the bill did not make it through committee on time.

This year, the Legislature has been busy with COVID-19, upcoming elections and several scandals surrounding Gov. Andrew Cuomo.

“I’ve heard there’s no appetite to look at Article 14 amendments this year,” Bauer said.

Waiting until the next legislative cycle does not change the potential timeline of these amendments because either way, their second passage of both chambers would take place in 2023. A statewide referendum would follow that.

ORDA declined to comment on this story on how the ruling might affect its future tree cutting.

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